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'The life of the law has not been logic; it has been experience. The law embodies the story of a nation's development...it cannot be dealt with as if it contained the axioms and corollaries of a book of mathematics' - (Oliver Wendell Holmes - 1841 to 1935). Pro Aequitate Dicere

In earlier reports the committee had set out its expectations for the delegated powers in the Bill and these expectations have not been met by the Bill as it stands. The committee comments:

In our 23rd and 30th Reports from the last Session, we set out our expectations for the delegated powers in this Bill.

Ministers must not have unfettered delegated powers. In particular, it would be wholly unacceptable
for the Bill to replicate the European Communities Act 1972 by giving
the Government a choice to adopt whichever procedure they liked for
statutory instruments made under the Bill.

Significant Henry VIII powers (the power
of Ministers to override Acts of Parliament by statutory instrument)
must be fully explained and justified.

The Bill must not enable major changes to policy or establish new frameworks beyond what is necessary to ensure that UK law continues to work properly on exit day.

Any time-limited delegated powers would need careful examination to see that they worked properly.

The Bill subjects the law-making powers
of Ministers to little parliamentary scrutiny. Apart from the small
number of cases where statutory instruments must adopt the affirmative
procedure, the Government have an unfettered choice as to which
procedure to adopt. This is a radical departure from the norm and one
that we regard as wholly unacceptable. We propose a sifting system that
will give Parliament a say on the parliamentary procedure applicable to
regulations made under the Bill.

The Bill confers on Ministers wider Henry VIII powers than we have ever seen.

Ministers have powers to alter 60 years of EU law when they consider it appropriate
to deal with deficiencies arising from the UK’s withdrawal from the EU.
This goes much wider than the Government’s White Paper commitment not
to make major changes to policy beyond those that are necessary to ensure UK law continues to function properly from day one.7

Although time-limits apply to secondary
legislation made by Ministers under clauses 7 to 9, they do not apply to
secondary legislation made under other powers contained in the Bill, or
to tertiary legislation (legislation made pursuant to secondary
legislation). We have more to say about this later.

Early timing of the report:

Normally the Committee reports on a Bill in sufficient time to allow Members of the
House of Lords to consider it before the Bill’s committee stage in the
House of Lords. However, the Committee notes that - "This Bill is of exceptional constitutional significance.
Central to the Bill is the balance of power between Parliament and
Government, including the propriety of giving Ministers such
unprecedented powers to override Acts of Parliament subject, in the
great majority of cases, to no scrutiny whatsoever on the floor of
either House. Accordingly we have written this report in sufficient time
for Members of the House of Commons to consider it at committee stage
in their House. In due course, we will also report on the Bill in the
form in which it comes to this House."

27. The things that Ministers
cannot do in regulations made under clause 7 bear some resemblance to
the restrictions currently found in the European Communities Act 1972.
However, there is something that regulations under clause 7 can do that
regulations under the 1972 Act cannot. Regulations under clause 7 allow
for “legislative sub-delegation”. That is to say, regulations under
clause 7 may allow people or bodies, including Ministers themselves, to
make further subordinate legislation (tertiary legislation) without
there necessarily being any parliamentary procedure or even any
requirement for the tertiary legislation to be made by statutory
instrument. Paragraph 12 of Schedule 7 says that regulations made by
Ministers must be made by statutory instrument. This would not catch
other forms of subordinate legislation apart from regulations. It would
not cover tertiary legislation made by non-Ministers. Arguably it does
not catch tertiary regulations at all (on the basis that they are not
made under the Act but are made under secondary legislation which is
itself made under the Act). Where tertiary legislation is not made by
statutory instrument, it evades the publication and laying requirements
of the Statutory Instruments Act 1946. Despite its greater
inaccessibility, tertiary legislation is still the law.

28. The delegated powers
memorandum suggests that the power to make tertiary legislation is
intended to be used sparingly, where it is appropriate for powers to be
conferred independently of political control, for example, conferring
powers on a regulator to set standards. However, there is nothing in the
Bill that limits the power in this way. It could be used for any
purpose for which regulations may be made under clause 7. It could, for
example, be used to create new bodies with wide powers to legislate in
one of the many areas currently governed by EU law, including aviation,
banking, investment services, chemicals and medicines. The regulations
might also contain only skeleton provisions in relation to a particular
activity, leaving the detailed regime to be set out in tertiary
legislation made not by Parliament, or even by Ministers, but by one of
the new bodies so created.

The committee recommends that -

Tertiary legislation should be subject to the same parliamentary control and time-limits applicable to secondary legislation.